Worthing v Roche Bros [1970] HCA 19

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ. Worthing v Roche Bros [1970] HCA 19

ORDER The plaintiff's demurrer to the second-named defendants' fifth plea being a plea to the fourth and fifth counts of the plaintiff's declaration is overruled. Plaintiff to pay the second-named defendants's costs of the demurrer. The interveners to pay to the plaintiff—

(1) four-fifths of so much of the costs paid by the plaintiff to the defendants as represent the costs of the argument of the demurrer on 29th, 30th and 31st October 1969, and

(2) four-fifths of the plaintiff's costs of the argument on those days.

The action otherwise adjourned with liberty to apply in chambers with respect to further proceedings therein.

Cur. adv. vult.

The following written judgments were delivered:—

1970, June 26 Barwick C.J.

The plaintiff in this action claims that whilst working in the employment of the second-named defendant he was injured by falling from his working place. He says that that defendant, being engaged in building work, was bound by a regulation made on 25th May 1950 under the Scaffolding and Lifts Act, 1912 N.S.W., to provide means by fencing or otherwise to secure his, the plaintiff's safety whilst working at the place from which he fell. The pleadings of these parties in this action as ultimately amended have raised by demurrer the question whether that defendant was so bound by the New South Wales regulations. The defendant claims he was not so bound because the place where the building work was being carried out and where the plaintiff sustained his injury was within the boundaries of the Royal Australian Air Force Base at Richmond in the State of New South Wales, a place which had been acquired by the Commonwealth of Australia for public purposes before the making of the said State regulation and therefore by reason of s. 52 of the Constitution of the Commonwealth a place where the State regulation could have no operation.